Linguists on the Second Amendment

Here‘s an amicus brief in DC v Heller from a few linguists (via Language Log). An few excepts:

…On its face, the language of the Amendment tells us that the reason why the right of the people to keep and bear arms shall not be infringed is because a well regulated militia is necessary to the security of a free State. The purpose of the Second Amendment, therefore, is to perpetuate “a well regulated Militia.”

…In the case of the Second Amendment, we have shown that the absolute clause affirmatively states the cause or reason for the Second Amendment’s existence. That significantly affects the meaning of the main clause, for it gives us every reason to think that this Amendment never would have been adopted but for the fact that the Framers believed the absolute clause’s statement that a well regulated militia is necessary to the security of a free state. And if we know why a provision is adopted, we surely know something about the intended scope of that provision. The Second Amendment’s absolute construction was adopted as an integral part of the Amendment, and it cannot be “omitted” or wished away by trying to show that it no longer is true.

…The term “bear arms” is an idiom that means to serve as a soldier, do military service, fight. To “bear arms against” means “to be engaged in hostilities with.” The word “arms” itself has an overwhelmingly military meaning, referring to weapons of offense or armor of defense. In every instance we have found where the term “bear arms” (or “bearing arms” or “bear arms against”) is employed, without any additional modifying language attached, the term unquestionably is used in its idiomatic military sense.

Now I really can’t evaluate this; I’ve seen the exact opposite arguments made, both about the import of the first clause and about the meaning of the idiom “keep and bear arms.” I do tend to think that a 39-page paper on a single sentence is at least a potential sign of over-analysis (and of course this is far from the only, or the longest, such.)

But certainly that first clause is there for a reason; it’s a statement about an important assumption the framers made. The framers did not trust standing armies, and specifically tried to make it a little difficult for the young United States to have one (see the army clause in article I, section 8 of the Constitution: army appropriations can be for no longer than two years. There is no such restriction on the navy). Without a standing army, a well-regulated militia was very much necessary for the security of the new free state.

We no longer think this. We’ve had a large standing army since the Civil War. We no longer need to keep guns over our hearths to rise in defense of our beloved homeland. Much as we all enjoyed Red Dawn, that’s just not going to happen.

So what does that mean for The Second Amendment Today? How do you interpret something whose explicitly stated purpose is no longer meaningful? I’ve no idea. I suppose it depends on theories of legal interpretation, a subject that makes me queasy(*). I think either side can be argued equally reasonably. Or unreasonably.

In practice, of course, the interpretative debate boils down to endless political maneuvering and litigation. All these linguistic and historical analyses, fascinating and perceptive though they may be, are virtually irrelevant in themselves; they’re just so much grist for the political and legal mills. Debates like this are won, insofar as they are ever resolved at all, not by academic argument but by winning elections and appointing sympathetic judges.

Oh well, at least it’s entertaining.

(*) I’m pretty cynical about anything that depends on a particular interpretive theory. It’s too easy to choose a theory, or bend an existing theory, to get whatever result you want. No slight on our nation’s Judges/Justices and politicians and whatnot, it’s just human nature.

5 Responses to “Linguists on the Second Amendment”

The professors who signed their names to the amici curiae in DC v. Heller assert that the words “bear arms” as used in the Second Amendment are meant only in an idiomatic sense, and they do so without considering what properties define an idiom, the actual text, or contemporary accounts which contradict their assertion.

It is more than a little odd that the professors discussed at length a grammatical term for which they are largely in agreement with linguists who take the opposing view of the amendment’s meaning (absolute constructions, as argued by Lund and others, modify the entire main clause, not the subject of the main clause), but provided no similar discussion of idioms. Had they embarked on a discussion of the properties of idioms, surely non-modifiability would have been mentioned.

Instead, in an attempt to downplay uses of “bear arms” from the founding era that plainly do not support their conclusion, the professors try to make use of the property of non-modifiability (without letting on too much) by explaining that adjoining language sometimes makes it obvious that the words “bear arms” have a meaning different from the idiom. However, the professors almost comically refuse to recognize that the Second Amendment also does not follow their asserted idiomatic form. In the second amendment, the words “bear arms” do not “stand alone” but are part of “keep and bear arms” so the 100+ examples of “bear arms” offered as evidence by the professors simply do not support their claim with regard to the Second Amendment. Nor do the professors attempt to read “bear arms” in the context of a “right to keep and bear arms”.

Moreover, descriptions of the provision as it was being drafted and shortly afterwards show that the figurative meaning was not how the words “bear arms” were understood in the context of the Second Amendment.
Tench Coxe’s essays published during the Congressional drafting and ratification debates on the Bill of Rights clearly did not follow the idiomatic form that the professors insist would have been commonly understood at the time. In explaining what would become the Second Amendment, prominent Federalist Tench Coxe wrote that the people were confirmed in their right to “keep and bear their private arms”. St. George Tucker’s commentaries (published 1803) also discussed the Second Amendmrnt/bearing arms in the non-idiomatic sense.

In regards to Absolute constructions, the professors’ disagreement with Lund is not in the operation of such clauses, but in the assumptions that one might logically make were the stated rationale not present. Lund correctly assumes that “the right to keep and bear arms” would not be infringed in any case. On the other hand the professors insist that the amendment would not exist but for the belief stated in the prefatory clause. However the professors’ assertion begs a few questions.

If the the Second Amendment had not been written, what then becomes of the right to keep and bear arms?

Are we to assume that the right (or any right) MAY BE infringed if there is no declared purpose for its non-infringment? Absurd! Government was not presumed to be in the business of infringing rights, the Framers took the view that the purpose of government was to protect rights.

Or perhaps the right would not even exist if not for that belief? There is no evidence whatever that the existence of the right depends on the prefatory clause, or on any part of the Second Amendment.

Or maybe the professors meant that there would have been no specific protection for the right to keep and bear arms written into the Constitution absent the belief stated in the prefatory clause. But why would one think such a thing considering that some contemporaneous state constitutional provisions did not even mention the militia? Such a conclusion is also undermined by the 9th amendment which shows that the Framers intended to protect rights not listed.

[…] they look interesting. From what little I’ve skimmed, my sympathies are with the militia one, not surprisingly. A couple of quotes: As a problem for constitutional historians, the question can be elaborated […]

The original amendment had one comma – A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.
As such it was submitted to the STATES for ratification. Along with Posse Comitatus to me this reads that the intention of the 2nd was to act as another check and balance on concentrating power. The Feds can’t take the power to maintain a militia from the states, thus providing an impediment to federal rule. We don’t need judges we need linguists . .. I trust the fathers were more likely school in language nuances than are contemporary morons.

[…] as they don’t understand the Second Amendment and couldn’t explain the function of a prefatory clause to save their guns, straight/white/conservative Christians clearly also have a poor grasp of the […]